A division bench of Justice AM Khanwilkar and Justice AP Bhangale also ruled that the special court has discretionary power to decide if an accused convicted twice under the NDPS Act shall be given death penalty or not.
In a landmark verdict, the Bombay high court on Thursday held that a section of Narcotics Drugs and Psychotropic Substances (NDPS) Act is violative of Article 21 (Right to Life) of the Constitution and that a second conviction need not be a death penalty.
A division bench of Justice AM Khanwilkar and Justice AP Bhangale also ruled that the special court has discretionary power to decide if an accused convicted twice under the NDPS Act shall be given death penalty or not. The verdict, a copy of which is yet to become available, was delivered over video conference as Bhangale is with the Nagpur bench of the court.
The court decided on the petition filed by Indian Harm Reduction Network (IHRN), a consortium of NGOs working for humane drug policies, challenging the constitutional validity of Section 31(A) of the NDPS Act, which prescribes a mandatory death sentence for certain drug offences upon subsequent conviction. The petition was filed after a Kashmiri was awarded death sentence as it was his second conviction.
Counsel Anand Grover, along with advocates Vijay Hiremath and HE Mooman, vociferously argued that the provision was “arbitrary, disproportionate and excessive”, prevented individualised sentencing and denied the accused an opportunity to be heard on the question of sentence.
“The provision prescribing mandatory death sentence is uncalled for as it takes away the discretion from the judge on sentencing the convict. The special court judge has no choice other than handing down the death penalty. Hence, it precludes judicial discretion,” argued Grover.
Satya Dash, under secretary of the finance department of revenue, filed an affidavit justifying the death penalty stating that it was applicable only for certain categories of offences involving ‘commercial’ quantity of any narcotic drug or psychotropic substance.
There have only been two cases in Mumbai where the death sentence has been awarded in an NDPS case, one of which was reversed by the high court in 2004 and the other is pending.
The petition was filed after Kashmiri Ghulam Malik was awarded the death sentence by the special court on December 9, 2007, because it was his second conviction under the NDPS Act. He had earlier been convicted by a Gujarat court for conspiring to smuggle 142kg of hashish in 2004.
In 2003, the NDPS court had sentenced a Nigerian, Prince Uzozie, to death. Uzozie and two others were found with commercial quantity of 3kg of heroin in 1999. In 1993, Uzozie was convicted for his involvement in a 1989 case where he was caught with 100 g of heroin. However, high court reversed his sentence on October 26, 2004.
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}
)
){kind=small}
){kind=small}
)
)
)
)
)
){kind=small}
){kind=small}
){kind=small}
){kind=small}
){kind=small}